Cotty v. Town of Southampton

• Decision Date: 19 May 2009
• Docket Number: 2007-08536.
• Parties: KAREN COTTY, Respondent, v. TOWN OF SOUTHAMPTON et al., Appellants-Respondents, SUFFOLK COUNTY WATER AUTHORITY, Appellant-Respondent/Fourth-Party Plaintiff-Respondent, and ELMORE ASSOCIATES CONSTRUCTION CORP., Defendant/Third-Party Plaintiff, et al., Defendant. PETER DEUTCH, Third-Party Defendant/Fourth-Party Defendant-Appellant, et al., Fourth-Party Defendant.
• Court: New York Supreme Court — Appellate Division

64 A.D.3d 251

880 N.Y.S.2d 656

2009 NY Slip Op 04020

KAREN COTTY, Respondent, v. TOWN OF SOUTHAMPTON et al., Appellants-Respondents,

SUFFOLK COUNTY WATER AUTHORITY, Appellant-Respondent/Fourth-Party Plaintiff-Respondent, and

ELMORE ASSOCIATES CONSTRUCTION CORP., Defendant/Third-Party Plaintiff, et al., Defendant.

PETER DEUTCH, Third-Party Defendant/Fourth-Party Defendant-Appellant, et al., Fourth-Party Defendant.

2007-08536.

Appellate Division of the Supreme Court of New York, Second Department.

May 19, 2009.

Thomas C. Sledjeski, PLLC (Anita Nissan Yehuda, P.C., Roslyn Heights, of counsel), for Town of Southampton, defendant-appellant-respondent.

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola (Norman H. Dachs and Jonathan A. Dachs of counsel), for Suffolk County Water Authority, defendant-appellant-respondent/fourth-party plaintiff-respondent and CAC Contracting Corp., defendant-appellant-respondent (one brief filed).

Loccisano & Larkin, Hauppauge (Robert X. Larkin of counsel), for Peter Deutch, third-party defendant/fourth-party defendant-appellant.

Rosenberg & Gluck, LLP, Holtsville (Andrew Bokar of counsel), for plaintiff-respondent.

OPINION OF THE COURT

SKELOS, J.P.

When a person voluntarily participates in certain sporting events or athletic activities, an action to recover damages for injuries resulting from conduct or conditions that are inherent in the sport or activity is barred by the doctrine of primary assumption of risk. In this case, where the plaintiff was injured while riding a bicycle on a paved public roadway, we confront the threshold question of whether the plaintiff was engaged in an activity that subjected her to the doctrine of primary assumption of risk.

Beginning on July 24, 2002, pursuant to a contract with the defendant Suffolk County Water Authority (hereinafter SCWA), the defendant CAC Contracting Corp. replaced the asphalt in a trench that had been dug along the edge of Deerfield Road in Southampton for the purpose of installing a conduit for a water main. Two layers of asphalt were to be laid to fill the trench and bring it level with the preexisting roadway, but at the time of the subject accident, only one layer of asphalt had been laid, leaving a "lip" approximately one inch deep, parallel to the length of the road, where the preexisting roadway and the newly paved section met. At the site of the accident, the lip was not marked by any barricades or traffic cones.

On July 27, 2002, the plaintiff, a member of a bicycle club which engaged in long-distance rides, was the last bicyclist in one of several groups of eight riders cycling on Deerfield Road during a 72-mile ride. The plaintiff testified at a deposition that the road "was not perfectly smooth," and contained potholes. She had previously ridden on the subject road approximately 20 to 30 times, as recently as two to four weeks before the accident, and was aware of construction activity on various portions of the road. The road had no shoulder, and the plaintiff was riding approximately one to two feet from the edge of the road, and approximately 1 to 1½ wheel lengths behind the fourth-party defendant, Peter Deutch, at a maximum speed of 17 to 18 miles per hour. The bicyclists in the front of the line began a "hopping" maneuver with their bicycles to avoid the "lip" in the road. Deutch unsuccessfully attempted the hopping maneuver, and fell in the plaintiff's path. Seeking to avoid Deutch, the plaintiff swerved and slid into the road where she collided with an oncoming car, sustaining injuries.

The plaintiff commenced this personal injury action against, among others, the Town of Southampton, the SCWA, and CAC Contracting Corp. (hereinafter collectively the defendants), and the SCWA impleaded Deutch. The defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and Deutch cross-moved for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. The defendants and Deutch (hereinafter collectively the appellants) contended, inter alia, that the plaintiff had assumed the risks commonly associated with bicycle riding. The Supreme Court denied the appellants' motions.

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Turcotte v Fell, 68 NY2d 432, 439 [1986]). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see Morgan v State of New York, 90 NY2d at 484; Turcotte v Fell, 68 NY2d at 439). Because determining the existence and scope of a duty of care requires "an examination of plaintiff's reasonable expectations of the care owed him by others" (Turcotte v Fell, 68 NY2d at 437), the plaintiff's consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, "the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence" (id. at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]).

The policy underlying the doctrine of primary assumption of risk is "to facilitate free and vigorous participation in athletic activities" (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]). Without the doctrine, athletes may be reluctant to play aggressively, for fear of being sued by an opposing player. As long as the defendant's conduct does not unreasonably increase the risks assumed by the plaintiff, the defendant will be shielded by the doctrine of primary assumption of risk (see Morgan v State of New York, 90 NY2d at 485; Benitez v New York City Bd. of Educ., 73 NY2d at 658; Muniz v Warwick School Dist., 293 AD2d 724 [2002]).

The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport (see Trevett v City of Little Falls, 6 NY3d 884 [2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Ribaudo v La Salle Inst., 45 AD3d 556 [2007]). If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies (see Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669 [2001]; Turcotte v Fell, 68 NY2d at 439; Rosenbaum v Bayis Ne'Emon, Inc., 32 AD3d 534 [2006]; Joseph v New York Racing Assn., 28 AD3d 105, 108 [2006]).

The Court of Appeals has had no occasion to expound upon the threshold question of what type of activity qualifies as participation in a sporting event for purposes of applying the doctrine of primary assumption of risk. In Turcotte v Fell, for example, the Court had little difficulty in concluding that the doctrine applied to the plaintiff, a professional jockey riding in a horse race at a track owned and operated by the New York Racing Association. Here, had the plaintiff been a professional athlete involved in a bicycle race on a track or a closed course, the doctrine of primary assumption of risk clearly would apply (cf. Morgan v State of New York, 90 NY2d at 486; Joseph v New York Racing Assn., 28 AD3d at 108-109). This case, however, presents different circumstances.

In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred. In our view, it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities. Such a broad application of the doctrine of primary assumption of risk would be completely disconnected from the rationale for its existence. The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition (see Sykes v County of Erie, 94 NY2d at 913 ["the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises"]), and such a result does not become justifiable merely because the roadway in question happens to be in use by a person operating a bicycle, as opposed to some other means of transportation (see Caraballo v City of Yonkers, 54 AD3d 796, 796-797 [2008] ["the infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by a defective condition of a pothole on a public street, merely...